Khorwa alias Manglu and Another vs State of M.P. (Now C.G.)

Hon''ble Shri Sunil Kumar Sinha, J.—These appeals are directed against the judgment dated 24th of February, 1995 passed in Session Trial No. 205/93 by the Seventh Additional Session Judge, Bilaspur. By the impugned judgment the appellants were convicted u/ss 302/34 IPC and sentenced to undergo imprisonment for life. Appellants- Radhesingh and Khorwa @ Manglu died during the pendency of the appeal, therefore, their names have been deleted from the cause-title of the respective appeals and the appeals filed on behalf of appellant-Radhesingh and appellant-Khorwa @ Manglu have abated.

The facts, briefly stated, are as under :--

Deceased- Guharam was resident of Village Beeja. On 8.3.1993, he had gone to village Ghongadih. At about 10-11.00 p.m., he was returning to village Beeja by his bicycle. The case of the prosecution is that as soon as he reached near the house of Sahasram (Sanchram - PW-3) he was stopped by the appellants; an altercation took place and appellants assaulted him by tabbal. Sahasram (PW-3) witnessed the incident. Sahasram (PW-3) immediately went to the house of Bhuwan Ram (PW-2 - son of deceased- Guharam) and narrated the story to Bajharin Bai (aunt-badi Ma) of Bhuwan Ram (PW-2). Bajharin Bai then narrated the story to Bhuwan Ram (PW-2) who firstly went to the place of occurrence, saw the dead body of his father and lodged the First Information Report (F.I.R.- Ex.-P/11). The Investigation Officer reached to the place of occurrence, gave notice (Ex.-P/1) to the Panchas and prepared inquest (Ex.-P/2) on the dead body of the deceased. The dead body was sent for post-mortem to Primary Health Center, Takhatpur vide requisition Ex.-P/12. The postmortem examination was conducted by Dr. V.K. Soni (PW-5). He noticed following injuries on the dead body of the deceased :--

(i) Big lacerated crushed wound extending from left ear to right ear, there were multiple fractures over the skull bones, the upper portion of skull was opened, brain membrane was ruptured and brain tissues were crushed;

(ii) Lacerated wound extending from left cheek to right eye, 12 cm x 2 cm, teeth were uprooted, there were fractures on left maxillary bone and right mandibolar bone, there was also fracture on nasal bone; &

(iii) Bluishness 10 cm x 1 cm on the left portion of chest.

According to the Autopsy Surgeon all the injuries were ante-mortem and injury no. (i) was sufficient to cause death in ordinary course of nature. The death was homicidal. The post-mortem report is Ex.-P/13.

The case of the prosecution was based on the eye-witness account of Sahasram (PW-3). The learned Session Judge relied on the testimony of Sahasram (PW-3) and held that it was proved beyond all reasonable doubts that the appellants, sharing common intention, assaulted the deceased and the deceased died on account of assault mainly given by the appellants-Radhesingh and Gorelal and 2 other appellants shared common intention with them.

Mr. S.C. Verma, learned Counsel appearing on behalf of the appellants, argued that the solitary eye-witness, Sahasram (PW-3), was not reliable; he changed his version on many occasions; though he firstly informed to the family members of the deceased that the deceased was assaulted by tabbal, but later on, he made statement that the deceased was assaulted by lathi; his version relating to specific role played by the appellants is also different at different point of time; in fact, he was a begotten witness. In addition to the above arguments, he also argued that the copy of the F.I.R. was not sent to the llaqa Magistrate at all, which also creates a doubt against the prosecution.

On the other hand, Mr. J.A. Lohani, learned Panel Lawyer appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Session Court.

We have heard learned Counsel for the parties at length and have also perused the records of the sessions case.

We shall firstly examine the evidence of solitary eye-witness Sahasram @ Sanchram (PW-3).

Sahasram (PW-3) deposed that "the fateful night was the night of Holi Festival. He was sleeping in his house. At about 10-11.00 p.m., he heard the voice of deceased- Guharam. Guharam was shouting. Thereafter he heard the voice of appellant- Gorelal. He was also shouting over Guharam. When he came out in the courtyard of his house, he saw that appellant-Radhesingh assaulted Guharam by lathi. Guharam fell down on the ground. Thereafter appellant-Gorelal also assaulted him. Then all the 4 appellants ran away. He had seen the incident from a distance of 10 steps. Appellant-Gorelal and Radhesingh were holding lathi(s). They had given 20-25 lathi blows to the deceased which hit on the skull of the deceased. He saw the dead body and informed the villagers namely- Bhukha, Billu. Kailash Chandra Goraha, Tahlu etc. Thereafter, son of the deceased went to lodge the F.I.R. (Ex.-P/11)".

In cross-examination, he admitted that only Radhesingh and Gorelal had assaulted the deceased and appellants- Bola and Khorwa had not assaulted him, however, they were present at the place of occurrence along with the other appellants. There are many contradictions and omissions in his evidence. In his earlier version (161 Cr.P.C. statement- Ex. D/1), he stated that he had seen that appellant- Radhesingh was lying on the ground and his bicycle was lying over him, whereas in the court evidence he completely denied these facts and gave explanation that he did not make such statement before the police. He can not say how it is written. Further, he also denied that when he called the villagers, they saw that Guharam (deceased) and Radhesingh both were lying at the place of occurrence. When he was faced with his case diary statement (Ex.-D/1) relating to his above evidence, he denied to give such statement to the police. There are other contradictions also.

Apart from the above, we also find that Sahasram (PW-3) has changed his version at many occasions. In his 161 Cr.P.C. statement (Ex.-D/1) though he made statement about presence of all the appellants, but he very specifically mentioned that appellant- Khorwa alone had assaulted the deceased by lathi. He gave repeated lathi blows and thereafter the accused persons ran away from the place of occurrence. According to Bhuwan Ram (PW-2), Sahasram (PW-3) informed his aunt-Bajharin Bai that the appellants had assaulted his father by a tabbal and on this information, Bhuwan Ram (PW-2) lodged the F.I.R. (Ex.-P/11). In the F.I.R. also, the case of the prosecution is that the appellants had assaulted the deceased by tabbal who received multiple injuries and succumbed to those injuries. This was based on the information given by Sahasram (PW-3). Sahasram did not depose about the use of tabbal to assault the deceased. Even he did not state about tabbal in his 161 Cr.P.C. statement. This shows that he has given different story at different point of time. At one point of time, which was his earliest disclosure, he stated to the family member of the deceased that the deceased was assaulted by tabbal. But, later on, when his 161 Cr.P.C. statement was recorded, he gave the version that the deceased was assaulted by lathi and not by tabbal. In his 161 Cr.P.C. statement, he mainly emphasized that the deceased was assaulted by appellant-Khorwa alone and the other appellants were merely present there. However, in his court evidence, he took the names of 2 other appellants being assailants of the deceased namely- Radhesingh and Gorelal. In appreciation, we find that he changed his version at many occasions relating to involvement of the particular appellant as also the manner of assault and weapon used.

Not only this, his version is not supported by the medical evidence. According to the Autopsy Surgeon, the deceased received 2 lacerated wounds, whereas according to Sahasram (PW-3), 20-25 lathi blows were given to the deceased and all the blows hit on the skull of the deceased. The changing version of this witness at different occasions as also the above discrepancy in the ocular version and the medical evidence create doubt that Sahasram (PW-3), the solitary eye-witness, in fact, had witnessed the occurrence.

Mr. S.C. Verma has also argued that the copy of the F.I.R. (Ex.-P/11) was not sent to llaqa Magistrate. He placed his reliance on Shivlal and Another Vs. State of Chhattisgarh,

In Shivlal and Another Vs. State of Chhattisgarh, the Supreme Court observed in Paras- 18, 19 & 20 as follows :--

This Court in Bhajan Singh @ Harbhajan Singh and Others Vs. State of Haryana, has elaborately dealt with the issue of sending the copy of the FIR to the llaqa Magistrate with delay and after placing reliance upon a large number of judgments including Shiv Ram and Another Vs. State of U.P., and Arun Kumar Sharma Vs. State of Bihar, , came to the conclusion that CrPC provides for internal and external checks: one of them being the receipt of a copy of the FIR by the Magistrate concerned. It serves the purpose that the FIR be not ante-timed or ante-dated. The Magistrate must be immediately informed of every serious offence so that he may be in a position to act u/s 159 CrPC, if so required. The object of the statutory provision is to keep the Magistrate informed of the investigation so as to enable him to control the investigation and, if necessary, to give appropriate direction. However, it is not that as if every delay in sending the report to the Magistrate would necessarily lead to the inference that the FIR has not been lodged at the time stated or has been ante-timed or ante-dated or the investigation is not fair and forthright. In a given case, there may be an explanation for delay. An unexplained inordinate delay in sending the copy of the FIR to the llaqa Magistrate may affect the prosecution case adversely. However, such an adverse inference may be drawn on the basis of attending circumstances involved in a case.

In the instant case, copy of the FIR was not sent to the Magistrate at all as required u/s 157(1) CrPC. In such a case, in the absence of any explanation furnished by the prosecution to that effect, would definitely cast a shadow on the case of the prosecution. This Court dealt with the issue in State of M.P. Vs. Kalyan Singh, (2011) 9 SCC 569, wherein this Court was informed by the Standing Counsel that in Madhya Pradesh, police is not required to send to the copy of the FIR to the llaqa Magistrate, but it is required to be sent to the District Magistrate. It was so required by the provisions contained in Regulation 710 of the Madhya Pradesh Police Regulations. This Court held that Regulation 710 cannot override the statutory requirements u/s 157(1) CrPC which provide for sending the copy of the FIR to the llaqa Magistrate.

The instant appeal has come from Chhattisgarh which has been carved out from the State of Madhya Pradesh. The learned Standing Counsel for the State is not in a position to throw any light on this issue at all. Thus, in such a fact situation, we can simply hold that in spite of the fact that any lapses on the part of the IO, would not confer any benefit on the accused, the case of the prosecution may be seen with certain suspicion when examined with other contemporaneous circumstances involved in the case.

Observing the above specific feature of the case, the Supreme Court taking other circumstances into consideration, gave benefit of doubt based on entirety of evidence.

In the instant case, copy of the F.I.R. was not sent to the llaqa Magistrate at all. No explanation has been brought on record for the above lapse committed by the prosecution. This was a requirement u/s 157(1) Cr.P.C. In the facts and circumstances of this case, when there was difference in prosecution version relating to manner of assault and weapon used, at the stage of F.I.R. and court version, the above omission on the part of the prosecution would assume importance. It appears that firstly the F.I.R. (Ex.-P/11) was lodged in regard to assault given by tabbal, but, when the post-mortem report came and no injury of tabbal was found, the version was changed and story of giving assault by lathi was brought. All this was at the instance of the solitary eyewitness namely Sahasram (PW-3).

In the above facts and circumstances of the case, we are unable to sustain the conviction of the appellants on the sole testimony of Sahasram (PW-3) whom we do not find to be fully reliable. We are of the view that the appellants are entitled to get benefit of doubt. For the foregoing reasons, the appeal is allowed. The conviction & sentences awarded to the appellants u/s 302/34 IPC are set-aside. They are acquitted of the charges framed against them.